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4. Legal Pluralism Versus a Uniform Civil Code: The Continuing Debates in India
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65 4. LegalPluralismVersusaUniformCivilCode The Continuing Debates in India Manisha Desai Unlike most secular democracies, India does not have a Uniform Civil Code (UCC) to address matters of inheritance, marriage, divorce, maintenance, and adoption.1 Instead, these issues are governed by religious personal laws. In India four religious communities—the majority Hindu, Muslim, Christian, and Parsi—have their own personal laws. Other religious communities such as Sikhs, Jains, Buddhists, tribal groups, and dalit or schedule castes are subsumed under Hindu law (Sunder Rajan 2003).2 The lack of a Uniform Civil Code for personal laws has come up for public scrutiny at various junctures following independence in 1947, including during the Constitutional Assembly when law minister Ambedkar resigned over it, in the 1950s when the Hindu Reform Bill was passed, again in 1986 during the infamous Shah Bano case—when the furor over it led to the passage of the 1986 Muslim Women’s Protection Bill—and most recently in 2003 when the Bharatiya Janata Party (Indian 1. Thus, women of different religious communities have different rights around these issues. But all women are guaranteed the same economic and political rights as men in the constitution. 2. The schedule castes are the former untouchable castes, so named because the various castes so designated are enumerated on a schedule. Dalit (oppressed) is the word chosen by the schedule castes to refer to themselves. They were also called harijans (people of God) by Gandhi, but it was seen as a patronizing moniker and is rarely used today. 66 . Religion, Custom, the State, and Patriarchy People’s Party, or BJP) raised it. Its continued resurgence and abeyance reflect the contradictions of a secular, democratic, multireligious postcolonial state as well as the dynamics of reform and women’s movements past and present. The lack of a UCC in an otherwise gender-just constitution has been seen variously as the failure of the Constitutional Assembly;3 a political, albeit appropriate, compromise of a multireligious nation-state (e.g., Sheth 1990); a failure of secularism (Bardhan 1997; Jayal 1999); and, more recently, as a case for legal pluralism (for example, see Agnes 1999; Chatterjee 1998; and Nandy 1998). Legal pluralism is defined both in opposition as well as a complement to liberal legal theory, which as it developed in the West focused on a uniform and nation-state-based legal framework. This centrality of the state, legal scholars such as Santos (1995) argue, was a product of the denial of local and varied legalities based on customs and traditional practices. But under contemporary globalization the increased flows of people, ideas, and practices across national spaces have brought these varied legalities into interaction and often conflict with each other in many countries. Today, “the national legal field is a quilt of legalities woven by nationallocal dialectics which interweave the hegemonic state legal thread with multiple local legal threads” (ibid., 250). Such a legal pluralism is seen by many scholars as emancipatory because it challenges the Western hegemonic legality and recognizes the rich and varied legalities that have developed across the world. But I argue that the interaction and conflict between different legalities are neither new nor always emancipatory as far as women’s rights are concerned . It depends on how, when, why, and by whom the varied legalities are framed. My focus is primarily on personal laws and women’s rights. I argue, first, that the lack of a UCC reflects modern and colonial and postcolonial practices of regulation rather than an emancipatory legal pluralism but, second, that such an emancipatory legal pluralism is not precluded, as 3. By “gender justice” or “gender-just laws,” I mean laws that do not discriminate between men and women based on their sex. [44.205.5.65] Project MUSE (2024-03-28 15:17 GMT) Legal Pluralism Versus a Uniform Civil Code . 67 evidenced by women’s political mobilization, and can be furthered by a politics of cross-communal dialogue and solidarity. Colonial Construction of Personal Laws Bipan Chandra (1989) argues that in precolonial and colonial India religious communities did not have common interests or identities, as they were divided by caste, class, language, and ethnicity, among other differences . It is historians who misread these common identities into the past following colonial tendencies. The British colonial administration, faced with ruling and controlling a vast territory, with multiple customary laws, chose to develop a uniform set of administrative and criminal laws while leaving the “natives” to practice their diverse “personal laws.” This...